Capen v. Capen

• Decision Date: 08 January 1920
• Parties: CAPEN et al. v. CAPEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 355

125 N.E. 692

CAPEN et al.

v.CAPEN et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Jan. 8, 1920.

Appeal from Superior Court, Norfolk County; Robert F. Raymond, Judge.

Suit by Joseph S. Capen and others against Loranus C. Capen and another. From interlocutory decree overruling exceptions to and confirming the Master's reports, and from final decree dismissing the bill, complainants appeal. Decree reversed.E. F. Leonard, of Stoughton, for complainants.

Frederick G. Katzman, of Hyde Park (Philip Mansfield, of Boston, of counsel), for respondents.

RUGG, C. J.

This is a suit in equity to enforce the specific performance of an agreement. The defendants admit the signing of the agreement, but defend on the ground that their signatures were procured by misrepresentation and fraud. Sanford E. Capen in June, 1909, signed a document, informal but testamentary in purpose, purporting to dispose of his estate. Amongst other provisions in it was this:

‘I want Louisa C. Thayer to have the two bank books in the North Easton Bank as she gave me two thousand dollars.’

He gave directions for the distribution of the rest of his estate among relatives, concluding with this sentence:

‘I don't like the way that Loranus has treated me so give him ten dollars.’

This document is printed in the margin.¹

Loranus was a brother. He and his wife are the defendants.

The instrument was not attested by witnesses and hence was ineffective as a will. Sanford E. Capen died in July 1910, intestate, leaving an estate of which it is alleged that the appraised value is slightly in excess of $7,000. On the day of his funeral all his heirs at law and their wives and husbands [with the exception of Benjamin A. Capen and his wife, who signed later and are parties plaintiff] gathered at the residence of the deceased and signed an agreement of the tenor following:

‘We, the undersigned, heirs of Sanford E. Capen, deceased, of Stoughton, Norfolk county, Mass., hereby agree in each others presence, mutually, that the annexed statement (a copy whereof is above set forth) with his signature shall be considered by us as his last will and testament and furthermore agree that Joseph S. Capen shall be appointed administrator provided he agrees in writing that he fulfill the instructions of said Capen and we agree that Louisa C. Thayer shall be a tenant in common for her life with the said Emily, Georgiana, and Elisha Capen. And we severally agree as heirs and distributees of said estate to authorize said administrator to carry out the terms of said will and we hereby agree to hold him harmless on his probate bond in so doing and a copy of this agreement and his will be furnished each person signing.’

This agreement has been executed in large part and perhaps entirely by the other parties, but the defendant Loranus, about October 1, 1912, declined to accept the ten dollars given him by the signed document of the deceased and both he and his wife have refused to sign deeds of the real estate essential for giving effect as a will to the document signed by the deceased, in accordance with the terms of the agreement. Thereupon this suit was brought to compel performance.

[2] Such agreements, if not avoided for any legally sufficient cause, are proper subjects for specific performance. Ellis v. Hunt, 228 Mass. 39, and cases collected at 44, 116 N. E. 956.

The case was referred to a master. The rule directed him ‘to hear the parties and their evidence and report his findings to the court, together with such facts and questions of law as either party may request.’ In his report occurs this paragraph:

‘I find upon the evidence that, as to the respondents, said agreement of July 13th, [234 Mass. 361]1910, was without adequate consideration, that the signing of the same by the respondents was procured by the false representations of the complainant Joseph S. Capen to them, to wit: that one of the complainants, Louisa C. Thayer, could not recover the sum of two thousand dollars which she had previously placed in the hands of the said Sanford E. Capen unless all the heirs signed said agreement, and the further false representation to them that in order properly to probate the estate of said Sanford E. Capen it would be necessary for all the heirs to sign said agreement, both of which false representations the respondents believed to be true.’

Thereafter the case was ‘recommitted to the master with instructions to file a supplementary report covering the following matters: 1. What were the terms on which Louisa C. Thayer placed the two thousand dollars in the hands of Sanford E. Capen, and how was that sum used or invested by said Capen? 2. Did Joseph Capen when he made his representations to Loranus about the two thousand dollars know that his representations were untrue? 3. Did the defendants rely upon his representations? The master is further directed to report the evidence bearing upon these questions.’

The master's supplementary report in part was in these terms:

‘In compliance with the order of court recommitting this case to me as master I have to report upon the several questions submitted in the order as follows: ‘1. What were the terms on which Louisa C. Thayer placed the two thousand dollars in the hands of Sanford E. Capen and how was that sum used or invested by said Capen?’ I find that after Louisa C. Thayer had sold her house she gave some money, $2,000 in amount, which she had received for the same, to Sanford E. Capen, $1,000 of which he deposited in the North Easton Savings Bank in his own name. The remaining $1,000 he deposited in the Brockton Savings Bank as trustee for Louisa C. Thayer. Said $2,000 was paid to the said Sanford E. Capen by the Louisa C. Thayer with the understanding that if she died first he was to have it but if the said Sanford E. Capen died first then she was to have it. ‘2. Did Joseph Capen when he made his representations to Loranus about the two thousand dollars know that his representations were untrue?’ I find that the said Joseph S. Capen, when he made his representations to Loranus about the two thousand dollars, did know that said representations were not true. ‘3. Did the defendantsrely upon his representations?’ I find that the defendants did rely upon his representations. And as directed in said order I herewith report the evidence bearing upon these questions.'

Then follows a report of the testimony of Louisa C. Thayer.

Her agreement with the deceased seems not to have been in writing. Her examination does not appear to have been directed toward the ascertainment of what was said between her and the deceased at the time the money was placed in his hands. Whether the evidence was sufficient to support the finding of the master, however, is not open upon this record. The plaintiffs filed no objections or exceptions whatsoever to the master's supplemental report. Therefore there is no objection or exception on the ground that the master's finding as to the terms of this agreement was not warranted by the evidence. Objection and exception even of this sort must be made as required by Chancery Rules XXXI and XXXII, or it is not open. Roosa v. Davis, 175 Mass. 117, 55 N. E. 809;Hillier v. Farrell, 185 Mass. 434, 70 N. E. 424;Edwards Hall Co. v. Dresser, 168 Mass. 136, 140, 46 N. E. 420;Smedley v. Johnson, 196 Mass. 316, 82 N. E. 21;Stevens v. Rockport Granite Co., 216 Mass. 486, 493, 104 N. E. 371, Ann. Cas. 1915B, 1054.

What has been said disposes also of the questions whether the finding respecting the knowledge of Joseph S. Capen of the falsity of his representations and the reliance of Loranus C. Capen on those representations are justified by the evidence reported.

The only objections or exceptions in the record are those filed to the original report. The first is failure of the master to report ‘when the complainants had notice of the repudiation of said agreement by the respondents.’ It does not appear that there was any evidence on this point, or that there was any trial at all upon the point whether the defendants were estopped by their laches from relying upon the fraud alleged to have been practiced upon them, or any testimony as to when they discovered the fraud.

The third and fourth exceptions relate solely to the failure of the master to report the evidence touching the agreement between the deceased and Louisa C. Thayer, and the fact that Loranus C. Capen did not testify. Both these exceptions have been rendered immaterial by the supplemental report covering both these matters.

The fourth exception is to the effect that the only defense open to Loranus C. Capen in the absence of any testimony from him is the question of consideration for his signing the agreement. Such failure to testify, although important as bearing upon the weight to be given to his contentions, did not as matter of law prevent him from relying upon any legal defense to the suit. The inference cannot be pronounced irrational that this defendant was induced to sign the agreement through reliance upon the misrepresentations rather than through respect to the wishes of his brother as declared in the signed document.

[5] The final objection is that the alleged false representations were but expressions of opinion upon matters of law. It could not be ruled as matter of law that this was the limit of their scope. Whether Louisa C. Thayer could recover the sum of two thousand dollars from the estate of the deceased was a question which depended primarily upon the circumstances under which the money had been placed in his hands by her and the attendant conversations and agreements. The precise misrepresentations actually made by Joseph S. Capen to the respondents are not set forth by the master. They are described by him only in general terms. The evidence upon that point does not purport to be set out. For aught that...